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SJC-11532
TRENEA FIGGS vs. BOSTON HOUSING AUTHORITY.
Suffolk. April 8, 2014. - August 18, 2014.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,
& Lenk, JJ.1
Boston Housing Authority. Housing Authority. Municipal
Corporations, Housing authority. Practice, Civil, Action
in nature of certiorari. Administrative Law, Hearing,
Substantial evidence. Evidence, Hearsay.
Civil action commenced in the Boston Division of the
Housing Court Department on August 24, 2012.
The case was heard by Jeffrey M. Winik, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Michael J. Louis & Angela Marcolina for the defendant.
Jeremy T. Robin for the plaintff.
The following submitted briefs for amicus curiae:
Jeffrey C. Turk for Greater Boston Real Estate Board &
another.
James M. McCreight, Alex Munevar, & Quinten Steenhuis for
Massachusetts Coalition for the Homeless & others.
Esme Caramello, Deena Greenberg, & Melanie Zuch for Charles
Hamilton Houston Institute & another.
1
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
2
SPINA, J. Trenea Figgs is a participant in the United
States Department of Housing and Urban Development (HUD) Housing
Choice Voucher Program, commonly referred to as "Section 8,"
administered by the Boston Housing Authority (BHA) pursuant to
42 U.S.C. § 1437f (2012) and implementing HUD regulations.2 On
November 22, 2011, the BHA notified Figgs of its intent to
terminate her participation in the Section 8 program due to
allegations of serious or repeated violations of her lease.
Several weeks earlier, Boston police officers had executed a
search warrant for Figgs's apartment in connection with a
criminal investigation of her brother, Damon Nunes, and had
discovered, among other things, two plastic bags of marijuana, a
.380 caliber Ruger pistol, and five rounds of ammunition. Figgs
2
In the United States Department of Housing and Urban
Development (HUD) Housing Choice Voucher Program (Section 8),
HUD "pays rental subsidies so eligible families can afford
decent, safe and sanitary housing." 24 C.F.R. § 982.1(a)(1)
(1999). See Costa v. Fall River Hous. Auth., 453 Mass. 614, 615
n.2 (2009); Carter v. Lynn Hous. Auth., 450 Mass. 626, 626 n.1
(2008); Wojcik v. Lynn Hous. Auth., 66 Mass. App. Ct. 103, 103
n.2 (2006). The Section 8 program is "generally administered by
State or local governmental entities called public housing
agencies (PHAs). HUD provides housing assistance funds to the
PHA. HUD also provides funds for PHA administration of the
programs." 24 C.F.R. § 982.1(a)(1). Section 8 housing
assistance may be "tenant-based" or "project-based." 24 C.F.R.
§ 982.1(b)(1) (1999). With tenant-based assistance, "[f]amilies
select and rent units that meet program housing quality
standards. If the PHA approves a family's unit and tenancy, the
PHA contracts with the owner to make rent subsidy payments on
behalf of the family. A PHA may not approve a tenancy unless
the rent[] is reasonable." 24 C.F.R. § 982.1(a)(2) (1999). See
24 C.F.R. § 982.1(b)(1), (2) (1999).
3
appealed the proposed termination. Following an informal
hearing on February 22, 2012, a hearing officer, by decision
dated August 6, 2012, upheld the termination of Figgs's Section
8 housing subsidy.
On August 24, 2012, Figgs filed a verified complaint in the
Housing Court for injunctive and declaratory relief. She sought
to enjoin the BHA from terminating her Section 8 housing subsidy
on the ground that the informal hearing failed to satisfy her
procedural due process rights under the Fourteenth Amendment to
the United States Constitution, and she sought a declaration
that the bases for her termination were insufficient. In
response, the BHA filed a motion for judgment on the pleadings.
On March 19, 2013, a judge reversed the decision of the hearing
officer, and he ordered the BHA to reinstate Figgs's Section 8
housing subsidy back to November 22, 2011.3 The BHA appealed the
3
The judge treated Figgs's request for declaratory judgment as
one seeking relief in the nature of certiorari pursuant to G. L.
c. 249, § 4. In light of his decision regarding the certiorari
claim, the judge did not address the injunction or due process
claims. In her brief in this appeal, Figgs has not raised any
due process claims. It appears from the record that Figgs
received proper notice of the BHA's intent to terminate her
Section 8 housing subsidy, see 24 C.F.R. § 982.554(a) (1999);
was afforded an informal hearing conducted by an impartial
decision maker, see 24 C.F.R. § 982.555(a)(1)(v) and (e)(4)(i)
(2000); was represented by counsel at the hearing, see 24 C.F.R.
§ 982.555(e)(3) (2000); was given an opportunity to present
evidence and question witnesses, see 24 C.F.R. § 982.555(e)(5)
(2000); and was issued a written decision stating the reasons
for the decision, see 24 C.F.R. § 982.555(e)(6) (2000), and
explaining the hearing officer's assessment of mitigating facts,
see 24 C.F.R. § 982.552(c)(2)(i) (2010). See generally Costa v.
4
judge's decision, the case was entered in the Appeals Court, and
we transferred it to this court on our own motion. We conclude
that, notwithstanding the enactment of G. L. c. 94C, § 32L,
which decriminalized the possession of one ounce or less of
marijuana, the BHA properly terminated Figgs's participation in
the Section 8 program due to evidence of other criminal activity
in her rental premises, which constituted a serious lease
violation. Accordingly, we reverse the judgment of the Housing
Court.4
1. Background. Figgs and her three minor children are the
authorized occupants of a subsidized apartment on Woolson Street
in the Mattapan section of Boston. Nunes would visit her there
and, on occasion, would babysit her children. Pursuant to
paragraph 10(a) of her lease, Figgs agreed "to refrain from
engaging in and to cause Household member(s), guest(s), or any
person under any Household member's control to refrain from
engaging in any criminal or illegal activity in the rental
Fall River Hous. Auth., 453 Mass. at 621-632. Accordingly, we
are not of the view that Figgs's due process rights were
violated.
4
We acknowledge the amicus briefs submitted in support of
Figgs by the Massachusetts Coalition for the Homeless, the
Boston Tenants Coalition, and City Life/Vida Urbana; and by the
Charles Hamilton Houston Institute for Race and Justice, the
Committee for Public Counsel Services, and the American Civil
Liberties Union of Massachusetts. We also acknowledge the
amicus brief submitted in support of the Boston Housing
Authority (BHA) by the Greater Boston Real Estate Board and the
Institute of Real Estate Managers.
5
Premises." BHA model lease § 10(a). As a participant in the
Section 8 program, Figgs also signed a document entitled "Family
Obligations of the Housing Choice Voucher Program," which
stated, among its provisions, that "[t]he family may not commit
any serious or repeated violation of the lease."5 By signing
this document, she certified that she understood her obligations
under the Section 8 program, and that her failure to comply with
these obligations "may result in the termination of [her]
participation in the program." According to Figgs, prior to the
commencement of the underlying proceedings, she had been a
participant in the Section 8 program for approximately ten years
without incident.
On October 18, 2011, members of the Boston police
department initiated an investigation into Nunes after a
confidential informant (CI) told officers that the CI had
observed a black .380 caliber firearm in Nunes's bedroom at the
apartment where Figgs lived with her children. The CI believed
that Nunes also lived there. The CI told officers that Nunes
had been in possession of this firearm "for some time," and that
Nunes had been known on occasion to hide the firearm on the back
porch of the apartment outside his bedroom window. As part of
5
Under HUD's regulations, "[f]amily" is defined as "[a]
person or group of persons, as determined by the PHA, approved
to reside in a unit with assistance under the [Section 8]
program." 24 C.F.R. § 982.4 (2002). Pursuant to this
definition, Nunes was not a member of Figgs's "family."
6
the investigation, officers independently observed Nunes
entering and leaving the house in which the apartment was
located several times over the course of approximately one week.
Detective Rodney Best then applied for and obtained from a judge
in the Superior Court a search warrant for Figgs's apartment.
On the evening of October 24, members of the Boston police
department assigned to the youth violence strike force detained
Nunes outside Figgs's apartment and executed the search warrant.
The apartment was unoccupied at the time of the search. From
the room that they understood to be Nunes's bedroom, officers
recovered two bags of a leafy green substance believed to be
marijuana,6 $653 in cash, a box of sandwich bags, a Massachusetts
photographic identification card of Nunes, a Rhode Island
medical card for Nunes, a red cellular telephone, and an "iPod,"
a portable media player.7 The police incident report did not
indicate the amount or weight of the marijuana. In a separate
bedroom, officers found a Massachusetts electronic bank transfer
(EBT) card. They also recovered a sneaker from the back porch
of the apartment, inside of which was a .380 caliber Ruger
6
Although the search warrant made no mention of controlled
substances, the marijuana was discovered in plain view.
7
The police incident report stated that officers also
recovered a digital scale, but that item did not appear on the
inventory list of property taken from Figgs's apartment pursuant
to the search warrant. The hearing officer did not include the
digital scale in his itemization of what was recovered during
the search of the apartment.
7
pistol that contained five rounds of ammunition. Nunes was
arrested and charged with possession of a class D substance with
intent to distribute, commission of this offense within a school
zone, unlawful possession of a firearm and of ammunition, and
improper storage of a firearm.
On November 22, the BHA notified Figgs of its intent to
terminate her participation in the Section 8 housing program.
Among the stated reasons for the proposed termination were
"[s]erious or repeated violations of the lease," specifically
paragraph 10(a), committed on October 24 when police discovered
marijuana and a loaded firearm in her apartment.8 As authority
for its decision, the BHA relied on 24 C.F.R. § 982.551(e)
(2010) (obligation not to commit serious violation of lease),
and 24 C.F.R. § 982.552(c)(1)(i) (2010) (authority to terminate
assistance for violation of any family obligation). Figgs
appealed the proposed termination and requested an informal
hearing.
8
The BHA also sought to terminate Figgs's Section 8 housing
subsidy on the grounds that she failed to request approval from
the BHA to add a family member (Nunes) as an occupant of the
apartment, and failed to provide complete and accurate
information regarding family composition and income. The
hearing officer found that, because the evidence was
insufficient to prove that Nunes was living in Figgs's
apartment, these two grounds for termination lacked merit. The
Housing Court judge affirmed the hearing officer's
determinations with regard to these two bases for termination,
and the BHA has not challenged this portion of the judge's
decision on appeal.
8
Following a hearing on February 22, 2012, at which Figgs
was represented by counsel and presented evidence on her own
behalf, a hearing officer upheld the BHA's decision.9 He stated
that the police reports contained "substantial indicia of
reliability to warrant a finding that Mr. Nunes was involved in
crimes of drugs and unlawful possession of [a] firearm in
[Figgs's] apartment." Notwithstanding the fact that the firearm
was found on the back porch, he continued, that area was still
part of the apartment. Given Figgs's acknowledgement that Nunes
was permitted to go to her apartment, the hearing officer found
that Nunes was Figgs's invitee and, as such, was under her
control when he engaged in criminal activities in her
apartment.10 Based on these findings, the hearing officer
concluded that Figgs had violated paragraph 10(a) of her lease.
9
In support of its allegations, the BHA submitted police
incident reports dated October 24 and 25, 2011; a so-called
"return" of the officer who executed the search warrant, listing
an inventory of the property taken from the premises; an
affidavit in support of the search warrant application; and a
"Recertification Questionnaire," signed by Figgs on January 25,
2011, setting forth the "Family Composition" of her apartment.
10
Under HUD's regulations, the phrase "[o]ther person under
the tenant's control" means, in relevant part, that "the person,
although not staying as a guest (as defined in this section) in
the unit, is, or was at the time of the activity in question, on
the premises (as premises is defined in this section) because of
an invitation from the tenant or other member of the household
who has express or implied authority to so consent on behalf of
the tenant." 24 C.F.R. § 5.100 (2001). In this appeal, Figgs
has not challenged the hearing officer's characterization of
Nunes as a person "under [her] control." Id.
9
The hearing officer next considered whether the lease
violation was "serious," such that it warranted Figgs's
termination from the Section 8 program. The hearing officer
said that Nunes was involved in an activity that threatened the
safety of others because a firearm containing five rounds of
ammunition was recovered in the apartment. Moreover, he
continued, the quantity of marijuana, the drug paraphernalia,
the large amount of cash, and the firearm permitted an inference
not only that Nunes was in possession of drugs, but also that he
intended to distribute or sell drugs in the apartment and to use
the apartment as a storage place for his firearm. The hearing
officer determined that the BHA had sufficient grounds to
propose termination of Figgs's Section 8 housing subsidy for a
serious lease violation.
Finally, in accordance with 24 C.F.R. § 982.552(c)(2)
(2010), the hearing officer considered whether there were
mitigating circumstances that would warrant an outcome other
than Figgs's termination from the Section 8 program. He stated
that Figgs's claimed lack of knowledge about Nunes's behavior
and her positive history as a Section 8 tenant did not offset
the seriousness of the criminal activities in her apartment.
The hearing officer found that Figgs had failed to exercise
proper control in her apartment, which would have forestalled
such criminal activities in the first place. He also found that
10
because Figgs was not disabled, had graduated from a computer
technology program, and was actively looking for employment, her
termination from the Section 8 program would not cause a severe
hardship to her family. Accordingly, the hearing officer
concluded that termination of Figgs's Section 8 housing subsidy
was proper in light of her serious lease violation.11
In reversing the hearing officer's decision and entering
judgment in favor of Figgs, the Housing Court judge concluded
that the hearing officer committed legal errors that adversely
affected Figgs's material rights. The judge determined that
there was insufficient reliable evidence in the administrative
record to support an inference that Nunes either engaged in
drug-related criminal activity in Figgs's apartment or kept an
illegal firearm and ammunition there. With regard to the
marijuana, he pointed out that the police officers did not
include in their written reports any observations or findings
about its weight or amount. In the judge's view, this was a
critical omission because under G. L. c. 94C, § 32L, "possession
of one ounce or less of marihuana shall only be a civil
offense," not a crime. The judge stated that without evidence
that the marijuana collectively weighed more than one ounce,
11
At the hearing, the BHA stated that it was not willing to
offer a lesser sanction of prohibiting Nunes from visiting Figgs
at her apartment given that both drugs and a firearm were found
in the apartment, posing a danger to other residents and
neighbors.
11
there was no basis for the hearing officer to conclude that
Nunes had engaged in the crime of possession of a class D
substance. Moreover, he continued, there was no evidence that
Nunes intended to distribute marijuana to others. The judge
concluded that the hearing officer made a legal error in
determining that Figgs had committed a serious violation of
paragraph 10(a) of her lease "based upon illegal drug activity."
With regard to the firearm and ammunition, the judge stated
that the hearing officer relied primarily on the hearsay
statements of the CI, as set forth in the search warrant
affidavit, to support his finding that Nunes kept a pistol in
Figgs's apartment. The judge pointed out that, apart from such
statements, there was no testimony from anyone who saw a firearm
in Figgs's apartment, who saw Nunes with a firearm, or who saw
Nunes place a firearm on the porch of the apartment. Further,
the judge continued, there was no evidence that the second-floor
porch was part of the apartment leased to Figgs, or that she had
exclusive access to it. The judge concluded that the hearing
officer's reliance on the CI's hearsay statements constituted
legal error because the statements were not supported by
substantial indicia of reliability and, therefore, were not
sufficient to support the termination of Figgs's Section 8
housing subsidy.
12
2. Standard of review. The function of a civil action in
the nature of certiorari under G. L. c. 249, § 4, is "to relieve
aggrieved parties from the injustice arising from errors of law
committed in proceedings affecting their justiciable rights when
no other means of relief are open."12 Swan v. Justices of the
Superior Court, 222 Mass. 542, 544 (1916). Certiorari also has
been described as "a limited procedure reserved for correction
of substantial errors of law apparent on the record created
before a judicial or quasi-judicial tribunal." School Comm. of
Hudson v. Board of Educ., 448 Mass. 565, 575-576 (2007). "To
obtain certiorari review of an administrative decision, the
following three elements must be present: (1) a judicial or
quasi judicial proceeding, (2) from which there is no other
reasonably adequate remedy, and (3) a substantial injury or
injustice arising from the proceeding under review."13 Indeck v.
12
General Laws c. 249, § 4, provides that "[a] civil action
in the nature of certiorari . . . may be brought in the supreme
judicial or superior court or, if the matter involves any right,
title or interest in land . . . in the land court." Pursuant to
G. L. c. 185C, § 3, the Boston division of the Housing Court
Department has concurrent jurisdiction with the Superior Court
Department regarding housing matters. We conclude that the
Housing Court has jurisdiction under G. L. c. 249, § 4,
concurrent with the Superior Court, to review decisions of a
public housing authority regarding housing matters.
13
The parties have not challenged whether an action in the
nature of certiorari was the proper avenue for review of the
BHA's decision. Although we have acknowledged that there is
some debate whether review of a local housing authority's action
should proceed under G. L. c. 249, § 4, or under G. L. c. 30A,
§ 14, we also have recognized jurisprudence standing for the
13
Clients' Sec. Bd., 450 Mass. 379, 385 & n.12 (2008). See Hoffer
v. Board of Registration in Med., 461 Mass. 451, 456-457 (2012).
It is well established that "the standard of review [under
G. L. c. 249, § 4,] may vary according to the nature of the
action for which review is sought." Garrity v. Conservation
Comm'n of Hingham, 462 Mass. 779, 792 (2012), quoting Forsyth
Sch. for Dental Hygienists v. Board of Registration in
Dentistry, 404 Mass. 211, 217 (1989). See Boston Edison Co. v.
Boston Redev. Auth., 374 Mass. 37, 49 (1977). Ordinarily, where
the action being reviewed is a decision made in an adjudicatory
proceeding where evidence is presented and due process
protections are afforded, a court applies the "substantial
evidence" standard.14 See Black Rose, Inc. v. Boston, 433 Mass.
proposition that a local housing authority is not an "agency"
within the meaning of G. L. c. 30A, § 1. See Rivas v. Chelsea
Hous. Auth., 464 Mass. 329, 333-334 (2013), and cases cited.
Because the BHA's decision satisfies the necessary elements for
certiorari review, and because the Housing Court judge treated
Figgs's complaint as one seeking relief under G. L. c. 249, § 4,
we do the same. See id. at 334 (for purposes of appeal,
decision of local housing authority treated "as it ha[d] been
treated throughout the appeal process").
14
In contrast, "[w]here the action being reviewed is not a
decision made in an adjudicatory proceeding and where the action
entails matters committed to or implicating a board's exercise
of administrative discretion, the court applies the 'arbitrary
and capricious' standard" (emphasis added). Garrity v.
Conservation Comm'n of Hingham, 462 Mass. 779, 792 (2012). See
Forsyth Sch. for Dental Hygienists v. Board of Registration in
Dentistry, 404 Mass. 211, 217-218 & n.2 (1989) (judge correctly
applied "arbitrary and capricious" standard of review where
proceeding before board was not adjudicatory and did not
implicate right to engage in lawful occupation).
14
501, 504-505 (2001); Saxon Coffee Shop, Inc. v. Boston Licensing
Bd., 380 Mass. 919, 924-925 (1980); Durbin v. Selectmen of
Kingston, 62 Mass. App. Ct. 1, 5-6 & n.7 (2004). See also A.J.
Cella, Administrative Law and Practice § 1917, at 501 n.55 (1986
& Supp. 2013). Therefore, we consider whether the Housing Court
judge correctly ruled that the hearing officer committed legal
errors that adversely affected Figgs's material rights. As part
of this inquiry, we examine the record to determine whether the
hearing officer's factual findings were supported by substantial
evidence.15
3. Discussion. Congress has declared that it is a policy
of the United States to "promote the goal of providing decent
and affordable housing for all citizens through the efforts and
encouragement of Federal, State, and local governments, and by
the independent and collective actions of private citizens,
organizations, and the private sector." 42 U.S.C. § 1437(a)(4)
(2012). To facilitate the achievement of this goal, Congress
has further declared that the United States will "assist States
and political subdivisions of States to address the shortage of
15
Pursuant to HUD's regulations, the hearing officer's
factual findings "relating to the individual circumstances of
the family shall be based on a preponderance of the evidence
presented at the hearing." 24 C.F.R. §§ 982.555(e)(6) (2000).
See Carter v. Lynn Hous. Auth., 450 Mass. at 634, 636. A
preponderance of the evidence persuades a trier of fact that
what is sought to be proved is more probably true than not true.
See Goffredo v. Mercedes-Benz Truck Co., 402 Mass. 97, 102-103
(1988); Sargent v. Massachusetts Acc. Co., 307 Mass. 246, 250
(1940).
15
housing affordable to low-income families." 42 U.S.C.
§ 1437(a)(1)(B) (2012). Through the Section 8 program,
"assistance payments may be made with respect to existing
housing" for the purposes of "aiding low-income families in
obtaining a decent place to live and of promoting economically
mixed housing." 42 U.S.C. § 1437f(a). See 42 U.S.C.
§ 1437f(o)(1)(A) (Secretary of HUD may provide financial support
to public housing agencies for tenant-based assistance using
established payment standard).
Congress has authorized the Secretary of HUD to "make such
rules and regulations as may be necessary to carry out his
functions, powers, and duties." 42 U.S.C. § 3535(d) (2012).
Accordingly, the Secretary promulgated 24 C.F.R. §§ 982.1-
982.643 (1995) as "a unified statement of program requirements
for the tenant-based housing assistance programs under Section 8
of the United States Housing Act of 1937 (42 U.S.C. [§] 1437f)."
24 C.F.R. § 982.2(a) (1999). The BHA, which administers the
Section 8 program on behalf of HUD, see note 2, supra, was
required to adopt "a written administrative plan that
establishes local policies for administration of the program in
accordance with HUD [regulations and] requirements." 24 C.F.R.
§ 982.54(a) (2001). See 24 C.F.R. § 982.54(b) (2001). The BHA
Administrative Plan for Section 8 Programs (rev. 2011) (BHA
administrative plan) provides that it may, in its discretion,
16
terminate a housing subsidy where the participant "has violated
any Family obligation under the [Section 8] program by action or
failure to act as listed in section 13.5.2 or as set forth in 24
C.F.R. § 982.551." BHA administrative plan § 13.3.9. See 24
C.F.R. § 982.552(c)(1)(i) (BHA "may at any time . . . terminate
program assistance for a participant . . . [i]f the family
violates any family obligations under the program").
More specifically, as pertinent here, § 13.5.2(d) of the
BHA administrative plan states that "[t]he Family may not commit
any serious or repeated violation of the Lease." Similarly, 24
C.F.R. § 982.551(e) provides that "[t]he family may not commit
any serious or repeated violation of the lease." Paragraph
10(a) of the lease signed by Figgs on January 25, 2011, states
that she agrees "to refrain from engaging in and to cause
Household member(s), guest(s), or any person under any Household
member's control to refrain from engaging in any criminal or
illegal activity in the rental Premises" (emphasis added).
In this appeal, the BHA first contends that the judge
improperly relied on G. L. c. 94C, § 32L, rather than on Federal
law, to decide that Nunes had not engaged in any criminal
activity vis-à-vis the marijuana. As such, the BHA continues,
the judge wrongly concluded that the hearing officer erred in
finding that Figgs had committed a serious lease violation,
predicated on Nunes's drug activity, that warranted her
17
termination from the Section 8 program. Figgs counters by
arguing that G. L. c. 94C, § 32L, serves a vital function in
assessing the severity of a lease violation. We begin our
analysis by considering whether Nunes was engaged in any
"criminal or illegal activity" in Figgs's apartment, focusing
first on the marijuana and subsequently on the firearm. To the
extent that we conclude that Nunes did engage in such activity,
we then consider whether the hearing officer erred in
determining that it constituted a serious lease violation
warranting the termination of Figgs's housing subsidy.
On November 4, 2008, Massachusetts voters approved St.
2008, c. 387, pursuant to the provisions of art. 48, The
Initiative, Part V, § 1, as amended by art. 81, § 2, of the
Amendments to the Massachusetts Constitution. See Commonwealth
v. Keefner, 461 Mass. 507, 509 (2012); Commonwealth v. Cruz, 459
Mass. 459, 464 (2011). This initiative, entitled "An Act
establishing a sensible State marihuana policy," was codified at
G. L. c. 94C, §§ 32L-32N. See St. 2008, c. 387. It changed the
status of possession of one ounce or less of marijuana from a
criminal offense to a civil infraction.16 See G. L. c. 94C,
16
General Laws c. 94C, § 32L, states, in relevant part:
"Notwithstanding any general or special law to the contrary,
possession of one ounce or less of marihuana shall only be a
civil offense, subjecting an offender who is eighteen years of
age or older to a civil penalty of one hundred dollars and
forfeiture of the marihuana, but not to any other form of
criminal or civil punishment or disqualification."
18
§ 32L. Notwithstanding the passage of this initiative,
"[p]ossession of one ounce or less of marijuana with intent to
distribute continues to be a crime, and the Commonwealth may
prosecute it as such, but only where an intent to distribute is
supported by probable cause." Commonwealth v. Humberto H., 466
Mass. 562, 570 (2013). See G. L. c. 94C, § 32C (a);
Commonwealth v. Keefner, supra at 514.
The hearing officer found that Figgs violated paragraph
10(a) of her lease, in part, because Boston police officers,
when executing the search warrant for her apartment, found two
plastic bags of marijuana and "drug paraphernalia" in a bedroom
used by Nunes. The hearing officer determined that Nunes was a
person under Figgs's control when he engaged in drug activity in
her apartment. See note 10, supra. Significantly, no evidence
was presented to the hearing officer regarding the weight of the
marijuana. Nonetheless, Nunes was charged with possession of a
class D substance with intent to distribute, which is a crime,
irrespective of the actual weight of the marijuana. The hearing
officer stated that two bags of marijuana, a box of sandwich
bags (which was found not in the kitchen but in the bedroom),
$653 in cash, and a firearm permitted an inference not only that
Nunes possessed the drugs, but also that he intended to
distribute or sell them from Figgs's apartment. We conclude
that the hearing officer properly could find, by a preponderance
19
of the evidence, that Figgs violated paragraph 10(a) of her
lease because Nunes was engaged in criminal drug activity in her
apartment. BHA model lease § 10(a).
We recognize that a significant rationale for the Housing
Court judge's reversal of the hearing officer's decision was the
fact that there was no evidence regarding the weight of the
marijuana. When this fact was considered in the context of
G. L. c. 94C, § 32L, decriminalizing the possession of one ounce
or less of marijuana, the judge determined that there was no
basis for the hearing officer to conclude that Nunes had engaged
in the "crime" of possession of a class D substance. Given the
judge's additional determination that there was no evidence that
Nunes intended to distribute marijuana to others, the judge
concluded that the hearing officer erred in finding a lease
violation predicated on drug activity. In light of our
conclusion in the present appeal that there was substantial
evidence of possession of marijuana with intent to distribute,
we do not decide whether possession of one ounce or less of
marijuana alone would be sufficient to constitute an "illegal
activity in the rental Premises" in violation of paragraph 10(a)
of Figgs's lease. BHA model lease § 10(a).
Next, we consider whether Nunes unlawfully possessed a
firearm and ammunition in Figgs's apartment. The BHA contends
that, contrary to the judge's conclusion, the hearing officer
20
did not err in relying on the hearsay statements of a CI because
they contained sufficient indicia of reliability. Further, the
BHA continues, when such statements were evaluated in
conjunction with other evidence presented at the informal
hearing, the hearing officer properly could conclude that Nunes
kept a loaded firearm in the rental premises. We agree.
As the BHA acknowledges, the hearing officer relied, in
substantial part, on the hearsay statements of a CI that were
contained in the search warrant affidavit of Detective Best.
Pursuant to 24 C.F.R. § 982.555(e)(5) (2000), evidence "may be
considered [by a hearing officer] without regard to
admissibility under the rules of evidence applicable to judicial
proceedings." See BHA administrative plan § 13.7.5(f). In
Costa v. Fall River Hous. Auth., 453 Mass. 614, 624-625 (2009),
we read this regulation's "specific reference to the
inapplicability of formal rules of evidence as support for the
conclusion that there is no categorical prohibition of hearsay"
at a hearing on the termination of a tenant's Section 8 housing
subsidy. After analyzing the due process implications of
relying on such evidence, we held that "hearsay evidence may
form the basis of a [public housing authority's] decision to
terminate Section 8 assistance so long as that evidence contains
substantial indicia of reliability." Id. at 627. See Gammons
v. Massachusetts Dep't of Hous. & Community Dev., 502 F. Supp.
21
2d 161, 165-166 (D. Mass. 2007) (hearsay evidence is admissible
in administrative proceedings, such as Section 8 hearing, where
relevant). See also Doe, Sex Offender Registry Bd. No. 10800 v.
Sex Offender Registry Bd., 459 Mass. 603, 638 (2011) ("In the
context of administrative proceedings, hearsay evidence bearing
indicia of reliability constitutes admissible and substantial
evidence").
In the present case, the CI told officers that he had
observed a black .380 caliber firearm in Nunes's bedroom at
Figgs's apartment.17 The CI further told officers that Nunes had
been in possession of this weapon for some time, and that Nunes
had been known on occasion to hide the firearm on the back porch
of the apartment outside his bedroom window.18 As part of their
investigation, officers independently observed Nunes entering
and leaving the house in which Figgs's apartment was located
several times over the course of approximately one week. Based
17
In his affidavit in support of the search warrant, Boston
police Detective Rodney Best stated that, as part of the police
investigation into Nunes, he had conducted a firearms license
inquiry with respect to both Nunes and Figgs, and that no
records were found.
18
Paragraph 2 of Figgs's lease defines the rental premises
as "the Unit and common areas appurtenant to the Unit" located
at the specified address on Woolson Street. See Black's Law
Dictionary 123 (10th ed. 2014) (defining "appurtenant" as
"[a]nnexed to a more important thing"). During the informal
hearing, Figgs's counsel introduced a map of Figgs's apartment,
which she had drawn, showing that the porch was appurtenant to
her unit, right outside the window of the bedroom purportedly
used by Nunes, as the CI had described.
22
on all the information set forth in Detective Best's affidavit,19
a Superior Court judge issued a search warrant, finding that
there was probable cause to believe that an illegal firearm
would be found in Figgs's apartment, either on the person or in
the possession of Nunes. Once officers executed the search
warrant, they found the loaded firearm on the back porch of the
apartment, just as the CI had told them. The hearsay statements
of the CI bore sufficient indicia of reliability to warrant
their consideration by the hearing officer.
Apart from these hearsay statements, the hearing officer
also relied on police incident reports stating that, once
officers searched Figgs's apartment and recovered the loaded
pistol, Nunes was arrested and charged with, among other things,
unlawful possession of a firearm and of ammunition. See Costa
v. Fall River Hous. Auth., 453 Mass. at 627 (police report
offering detailed factual account based on personal observations
of detective was sufficiently reliable to serve as basis for
termination decision). In totality, the hearing officer
properly could find, by a preponderance of the evidence, that
Nunes unlawfully possessed a firearm and ammunition in Figgs's
apartment. Unlawful possession of a firearm and of ammunition
are criminal offenses. See G. L. c. 269, § 10 (h).
19
We note that the affidavit in support of the search
warrant stated that the CI, in the past, had provided
information that had led to the arrest of wanted persons, as
well as to the recovery of drugs.
23
On the basis of the police officers' discovery of both
evidence of possession of marijuana with intent to distribute
and a loaded firearm in Figgs's apartment, the hearing officer
properly concluded that Figgs violated paragraph 10(a) of her
lease because Nunes, a person under her control, had engaged in
criminal activity in the rental premises. The judge below erred
in reaching a contrary conclusion.
We now turn our attention to the question whether the
hearing officer abused his discretion in determining that such
activity by Nunes constituted a serious lease violation
warranting Figgs's termination from the Section 8 program.
Absent an eviction, which did not occur in this case, Federal
law does not mandate a tenant's termination from the Section 8
program for a serious lease violation.20 Rather, a public
20
Title 42 U.S.C. § 1437f(o)(7) (2012) governs leases and
tenancy under the Section 8 program. It states that the housing
assistance payment contract between a public housing agency and
the owner of a dwelling unit shall provide that "during the term
of the lease, any criminal activity that threatens the health,
safety, or right to peaceful enjoyment of the premises by other
tenants, any criminal activity that threatens the health,
safety, or right to peaceful enjoyment of their residences by
persons residing in the immediate vicinity of the premises, or
any violent or drug-related criminal activity on or near such
premises, engaged in by a tenant of any unit, any member of the
tenant's household, or any guest or other person under the
tenant's control, shall be cause for termination of tenancy."
42 U.S.C. § 1437f(o)(7)(D). This statutory provision pertains
to termination of a tenancy by a landlord, not to termination
from the Section 8 program. However, if a family is evicted
from Section 8 housing for a serious lease violation, then the
PHA must terminate the family's housing subsidy. See 24 C.F.R.
§ 982.552(b)(2) (2010).
24
housing authority may terminate a Section 8 housing subsidy if
the family violates any of the family obligations set forth
under 24 C.F.R. § 982.551, which include the obligation to "not
commit any serious or repeated violation of the lease." See 24
C.F.R. § 982.552(c)(1)(i). See also BHA administrative plan
§ 13.3.9. The termination decision rests within the discretion
of the BHA. See Costa v. Fall River Hous. Auth., 453 Mass. at
630-631; Wojcik v. Lynn Hous. Auth., 66 Mass. App. Ct. 103, 111-
112 (2006). See also Carter v. Lynn Hous. Auth., 450 Mass. at
638 n.20, quoting Baldwin v. Housing Auth. of Camden, 278 F.
Supp. 2d 365, 371 (D.N.J. 2003) (housing authorities not
required under law, nor encouraged by HUD, to terminate
assistance in every circumstance where basis for termination
exists). When deciding whether to terminate a family's
participation in the Section 8 program because of action or
failure to act by a family member, "[t]he PHA may consider all
relevant circumstances such as the seriousness of the case, the
extent of participation or culpability of individual family
members, mitigating circumstances related to the disability of a
family member, and the effects of denial or termination of
assistance on other family members who were not involved in the
action or failure." 24 C.F.R. § 982.552(c)(2)(i) (2010).
Another circumstance that may be relevant in a termination
decision, depending on the nature of the particular case, is the
25
fact that Massachusetts has decriminalized the possession of one
ounce or less of marijuana.21 See G. L. c. 94C, § 32L.
Review under an abuse of discretion standard requires that
we "look for decisions based on 'whimsy, caprice, or arbitrary
or idiosyncratic notions.'" Cruz v. Commonwealth, 461 Mass.
664, 670 (2012), quoting Bucchiere v. New England Tel. & Tel.
Co., 396 Mass. 639, 642 (1986). We do not disturb a decision
"simply because [we] might have reached a different result; the
standard of review is not substituted judgment.'" Cruz v.
Commonwealth, supra, quoting Bucchiere v. New England Tel. &
Tel. Co., supra at 641. As we already have described, the
hearing officer evaluated the nature of the criminal activity by
Nunes in Figgs's apartment, as well as mitigating circumstances
that could point away from the termination of Figgs's Section 8
housing subsidy. Contrast Carter v. Lynn Hous. Auth., 450 Mass.
at 636-637. We conclude that there was substantial evidence to
support the hearing officer's findings as to possession of
marijuana with intent to distribute and unlawful possession of a
firearm and ammunition. Accordingly, the hearing officer did
not abuse his discretion in determining that Figgs had committed
21
Given the factual circumstances presented in this case,
we do not decide whether evidence of only the simple possession
of one ounce or less of marijuana would constitute a serious
lease violation permitting a tenant's termination from the
Section 8 program. Although we question whether such a
termination could withstand an abuse of discretion analysis, we
address neither this matter, nor whether in such circumstances
G. L. c. 94C, § 32L, would have any applicability.
26
a serious lease violation warranting her termination from the
Section 8 program.
4. Conclusion. For the reasons stated in this opinion,
the judgment of the Housing Court is reversed.
So ordered.